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Draft rules on net neutrality would scrap Title II track

On Wednesday, FCC Chairman Julius Genachowski offered reporters a preview of a draft rulemaking proposal that, in the words of Genachowski, would “preserve the freedom and openness of the Internet” by promoting greater transparency, but backs off from Genachowski’s earlier plan to regulate broadband transmission services under Title II of the Communications Act. Formulated after a round of meetings between Genachowski and stakeholders that include AT&T, Verizon, Google, and major cable firms, the draft proposal is now circulating among the FCC’s commissioners in advance of a vote that is scheduled to take place at the FCC’s December 21 open meeting. Although he offered few specifics on the plan, Genachowski told a press briefing that the rules would “protect consumers’ and innovators’ right to know basic information about broadband service, right to send and receive lawful Internet traffic, and right to a level playing field while providing broadband Internet access providers with the flexibility to reasonably manage their networks.” Part of that flexibility, continued Genachowski, includes the right of broadband network operators to enact “measures to match price to cost, such as usage-based pricing,” although the draft notice also includes provisions that prohibit “unreasonable discrimination” in the transmission of web traffic. Like landline operators, wireless broadband providers would also be subject to rules that mandate transparency and that prohibit blockage of lawful content. Genachowski emphasized, however, that the proposal recognizes the “differences between fixed and mobile broadband” and thus builds in some flexibility for wireless operators. Although FCC Commissioner Michael Copps said he would continue to press for tougher rules that provide “the strongest protections we can get” yet are built on “the most secure legal foundation so we don’t find ourselves in court every other month,” both FCC Republicans—Commissioners Robert McDowell and Meredith Baker—condemned the proposal as “reckless,” as Baker proclaimed: “we do not have the authority to act.” Hinting that the plan will not sit well with congressional Republicans, Senator Kay Bailey Hutchison (R-TX) said, “I have not seen any evidence to date that would justify this regulatory overreach.”

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